More on Universal Injunctions

A debate with Professor Amanda Frost

This morning, Politico released the transcript of a spirited debate between me and UVA’s Amanda Frost, who’s written one of the leading defenses of nationwide injunctions.

Professor Frost and I were encouraged to get much deeper into the weeds than is normally possible in the public press. And while the debate was recorded before Sam’s most recent post on universal injunctions, it touches on many of the arguments that he canvassed there.

There’s lots to unpack, and I thought Professor Frost was excellent—she made as good a case for the nationwide injunction as you’re likely to find. Here’s one excerpt where Professor Frost responds to my claim that a nationwide injunction is not necessary to provide complete relief to the plaintiffs in the birthright citizenship case:

Frost: … On the complete relief question, Professor Bagley and I will have to agree to disagree.

I certainly agree, and I’m glad you addressed it, that this administration — in their absolutely blatant, willful refusal to follow the law, even when told to do so by courts in many cases, to lie, obfuscate, then claim error and no ability to rectify it, for example, with [Kilmar Abrego] Garcia, — shows us that we could not trust them ever to just decide they couldn’t implement this fairly and justly, and therefore to impose for themselves a nationwide injunction.

That seems laughable with this administration.

But I also think you’re giving too much credit to police forces that are told you could pull over some people but not others and just check to see what group they’re part of. I’m not going to trust a police officer to do that, not because I think they’re bad actors — some are, some aren’t — but because that’s the kind of granular, fine-tuned administrative decision that would be very difficult to make by a police officer on the street implementing the law.

The same thing when it comes to prison conditions. The same thing when it comes to desegregating schools. You cannot slice the law so thin as to say that the line-level officials applying this law are going to have to now go through a fact-finding determination before they enforce it.

Your answer is that the state or government will decide not to enforce it against anyone. I think that is far too optimistic.

Obviously for this administration, I think we agree, but I would say, for all government entities, that is asking too much — and that is why courts are here to create rules that work for everybody.

Bagley: I hear where you’re coming from, but if they’re going to ignore a [judicial] declaration, I’m not sure why calling it a nationwide injunction solves that problem.

If the problem is that you’ve got a bad faith president that is going to simply ignore orders, how you label the injunction doesn’t matter much. You don’t buy as much from the nationwide injunction as we sometimes think.

I think the courts may not be in a good position if what you have is an administration that’s simply going to ignore court orders. That’s a much more serious defect, and it’s one that I think a nationwide injunction can’t fix.

Frost: That’s not the point I was making. The point I was making is that if you create an administrative order that is a judicial order and difficult to implement and rely on good faith implementation by the executive, not only will you obviously not get that from the Trump administration, I think you and I agree —

Bagley: I think you misunderstand. I agree with you that if it’s going to be that messy, and they’re going to try to slice it that thin, then they are courting a very serious risk of contempt.

I think it’s up to the administration that’s sitting, whether it’s a state official or a federal official, to decide whether they’re going to run that risk, not for the courts to make that determination for them.

You’ll have to decide for yourself where you come down.